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HUMAN RIGHTS COMMITTEE AND COMMITTEE AGAINST TORTURE ADOPT DECISIONS ON INDIVIDUAL COMPLAINTS OF VIOLATIONS
13 December 2005
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13 December 2005
Two United Nations human rights panels have found multiple violations of treaties on civil and political rights and on torture in cases brought by individuals against several countries.
During a meeting in Geneva last October and November, the Human Rights Committee found breaches of the International Covenant on Civil and Political Rights in 18 cases against Guyana, Uzbekistan, Tajikistan, Belarus, Australia, the Czech Republic, Peru, Zambia, Equatorial Guinea, Serbia and Montenegro, the Russian Federation and Sri Lanka. The Committee also declared inadmissible 15 complaints against France, Australia, Bulgaria, the Czech Republic and Slovakia, Armenia, Spain, Chile, Colombia, New Zealand, Belgium and Finland, from individuals alleging that their rights under the treaty had been violated, and it discontinued consideration of three cases against Zambia, Sweden and Spain.
Meanwhile, the Committee against Torture (CAT), also meeting in November in Geneva, adopted 14 decisions on individual complaints submitted under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee found violations of the Convention in 3 cases against Serbia and Montenegro, and Canada, but no violation in relation to complaints against Switzerland, Sweden, Norway and Canada. The panel declared three cases – in relation to Switzerland, Azerbaijan and Sweden – as inadmissible.
The Covenant and CAT allow individuals to lodge complaints that their rights under the treaties have been violated. The country accused of the violation must be a State party to the treaty in question and have accepted the competence of the respective Committee to consider such complaints. The individual must also exhaust all possible remedies available in the State party.
Cases considered to be of particular interest are summarized below. The full text of all the decisions -- in English, French, Spanish and Russian -- can be found on the website of the Office of the High Commissioner for Human Rights (www.ohchr.org). On the homepage, to “Human Rights Bodies”, click on “Search the Treaty Body Database”, choose the relevant Committee – CCPR, for Human Rights Committee, or CAT – and look under “Jurisprudence”, where the decisions are listed in chronological order.
Decisions of Human Rights Committee
Antonino Vargas Mas (Communication 1058/2002), Jorge Luis Quispe Roque (Communication 1125/2002) and Marlem Carranza Alegre (Communication 1126/2002) : The Committee adopted Views on three cases against Peru concerning persons who had been sentenced to long-term imprisonment under anti-terrorism Decrees, which were declared unconstitutional in 2003. Antonino Vargas Mas, Jorge Luis Quispe Roque and Marlem Carranza Alegre, all currently imprisoned, were arrested in Lima between June 1992 and February 1993 and accused of collaborating with the Shining Path organisation. They claimed that the conditions of their arrest and detention and the manner in which their trial was conducted amounted to violations of the Covenant.
In the cases of Antonino Vargas Mas and Marlem Carranza Alegre, the Committee found violations of article 7, regarding their allegations of torture upon detention, and article 10, regarding their conditions of imprisonment. In all three cases the Committee found violations of article 9, concerning the manner in which the arrests were made, and article 14, because of the breach of fair trial principles.
The Committee requested Peru to provide the authors with an effective remedy and appropriate compensation. It also asked Peru to consider terminating their deprivation of liberty, pending the outcome of the new proceedings against them currently pending for the same facts.
Karen Noelia Llantoy Huamán v. Peru (Communication 1153/2003): The case concerns a Peruvian youth carrying an encephalic foetus when 17 years old. Despite the Peruvian Criminal Code’s exception for pregnancy termination on health reasons, State medical authorities denied her the authorization for a therapeutic abortion, and she was compelled to carry through her pregnancy. She gave birth to an encephalic baby girl, who survived for only four days. Following the infant’s death, the author fell into a state of deep depression.
The State party did not supply any information concerning the admissibility or the merits, to challenge the author’s allegations. In the Committee’s view, the State party’s unwillingness to let the author benefit from a therapeutic abortion was the cause of the suffering she experienced, and amounted to a violation of article 7 of the Covenant. In the light of this finding the Committee did not consider it necessary to make a finding on article 6 of the Covenant (right to life). The Committee also held that the refusal to act in accordance with the author’s decision to terminate her pregnancy was not justified and amounted to a violation of article 17 of the Covenant. In addition, the fact that the author, who was 17 years old, did not receive, during and after her pregnancy, such medical and psychological support as was necessary in the specific circumstances of her case, amounted to a violation of article 24 of the Covenant. Finally, the Committee considered that the lack of an adequate legal remedy in the author’s case, revealed a violation of article 2 in conjunction with articles 7, 17 and 24.
Faure v Australia (Communication 1036/2001): In this case, the author was required to perform certain activities in exchange for receipt of unemployment benefits (a so-called "Work for Dole" scheme). The regime could not be challenged in court by persons if it was uncontested that they fell within the ambit of the social security legislation in question and had to perform such labour. The author contended that these circumstances violated article 8 of the Covenant, which prohibits forced labour, and article 2 of the Covenant, which provides the right to an effective remedy. The Committee rejected the claim under article 8, noting that labour prohibited by that article involved substantial severity, hardship and/or coercion and also that the Covenant exempted from such proscribed labour work which amounted to normal civic obligations.
In Ndong Bee et al. & Mico Abogo v Equatorial Guinea (Communications 1152 and 1190/2003), the Committee considered two cases concerning six victims held incommunicado (without access to family or lawyers) at Black Beach prison in Malabo. The authors were sentenced during a trial of 144 opponents of the regime, which was held in Malabo in May 2002. The Committee found violations of articles 7, 9, 14, paragraphs 3 (a), (b), (d) and (g), and 2, paragraph 3 (a) and (b), of the Covenant, regarding the authors’ allegations of torture, arbitrary detention and procedural irregularities, and required the State party to immediately release and compensate the victims and any other detainees in the authors’ situation. The Committee accepted that the author of the first communication act on behalf of four other inmates on the basis of the situation in which they were being held.
In its Views on Siragev v Uzbekistan (Communication 907/2000), the Committee found that Danis Siragev, a former pop star sentenced to death in 1999 for murder and robbery, had been subjected to torture during the preliminary investigation. The Committee further found that the author’s lawyer had been prevented to meet him privately, and that he had been denied access to the first instance court records while preparing his cassation appeal. The Committee concluded that Mr. Siragev’s rights under articles 6, 7 and 14, paragraph 3 (b), of the Covenant were violated, as he was subjected to torture and sentenced to death after an unfair trial. The Committee considered that as the death sentence was subsequently commuted, the violation of article 6 of the Covenant had been rectified.
The case of Immaculate Joseph et al. v Sri Lanka (Communication 1249/2004) was brought by 80 teaching sisters of a Catholic order of nuns, the Third Order of St Francis in teaching Sisters of the Holy Cross in Meinzingen of Sri Lanka. The Order had sought statutory incorporation to better purpose various religious and charitable objects. Incorporation required a law of Parliament to such effect. Numerous other analogous religious bodies associated with other religions had previously successfully pursued such statutory incorporation. In the instant case, the Bill of incorporation was challenged, and duly held by the Supreme Court, to be unconstitutional, in breach of provisions of the Sri Lankan Constitution protecting religious freedom and determining Buddhism to be the State religion. The Supreme Court's determination, made without advice of the proceedings to the teaching sisters or the Parliamentary sponsor of the Bill, had as a result that the Bill required a supermajority in Parliament and acceptance by referendum for passage.
The Committee held that the Supreme Court's determination violated article 18 of the Covenant (protection of religious freedom), as the Court had not shown how any of the permissible restrictions on religious freedom had applied in the case. The determination also violated the prohibition of discrimination on religious basis set out in article 26, as other similarly situated religious bodies had been incorporated without difficulty. Finally, the procedure of the Supreme Court, compared to other analogous cases, also breached the guarantee of equality before the law also protected in article 26.
Follow-up to Individual Communications
Within the context of the follow-up procedure to individual communications, the Special Rapporteur on Follow-up presented a progress report on all information received on a number of communications between the 84th and the 85th session. The Committee made follow-up recommendations including in the following cases:
In Judge v. Canada (Communication 829/1998), the Committee had found a violation of the right to life article (article 6, paragraph 1), as the State party, which had abolished the death penalty, had deported the author to the United States where he was under sentence of death. On 8 August 2004, the State party informed the Committee that a stay of execution was issued by the U.S. District Court of Eastern Pennsylvania in October 2002, and that no date was set for his execution. At its 85th session the Committee decided that the State party should be requested to provide a further update on this case.
In Jiménez Vaca v Colombia (Communication 859/1999), the Committee found violations of the right to life (article 6, paragraph 1), right to security of the person (article 9, paragraph 1), and right to leave one’s own country (article 12, paragraph 1 and 4), as an attempt had been made on the author’s life and, as there were no effective domestic remedies allowing the author to return from involuntary exile in safety. On 26 September 2005, the author informed the Committee that his appeal to the Constitutional Court was rejected on 12 April 2005. According to the Court, there was no evidence that the author was currently at risk of being a victim of violations of his rights to life and physical integrity, should he return to Colombia. Equally, there was no evidence that the author had been prevented from using appropriate domestic remedies in order to pursue those responsible for the facts alleged and obtain reparation. At the same time, the Court requested the Ministry for Foreign Affairs to inform the author about the mechanisms available in order to protect his life, should he receive threats in the future, and to take the necessary measures to facilitate his return to the country. At the 85th session, the Committee decided that the State party should be requested to provide an update on measures taken to implement the ruling of the Constitutional Court.
Decisions of Committee against Torture
During its thirty-fifth session, the Committee against Torture examined the case of Mostafa Dadar against Canada (258/2004). Mr Dadar, an Iranian citizen who had been in prison in Iran because of his involvement with the opposition movement, had arrived in Canada in 1988 and obtained permanent residence. In 1996, he was convicted of aggravated assault and sentenced to 8 years’ imprisonment. After serving his sentence, he was detained under the Immigration Act and the Canadian authorities decided to deport him because he was considered a threat to public safety. Mr. Dadar claimed that his expulsion would constitute a breach of article 3 of the Convention against Torture, according to which no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. The Committee examined the arguments submitted by the parties regarding the risk of torture that Mr. Dadar could face in Iran and concluded that such risk indeed existed. It therefore found that his deportation would amount to a breach or article 3 of the Convention by Canada. The Committee did not share the Canadian authorities’ opinion that the fact that Mr. Dadar presented a danger to Canadian citizens should prevail over the risk of torture, and recalled that the prohibition enshrined in article 3 was an absolute one.
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For use of the information media; not an official record
Two United Nations human rights panels have found multiple violations of treaties on civil and political rights and on torture in cases brought by individuals against several countries.
During a meeting in Geneva last October and November, the Human Rights Committee found breaches of the International Covenant on Civil and Political Rights in 18 cases against Guyana, Uzbekistan, Tajikistan, Belarus, Australia, the Czech Republic, Peru, Zambia, Equatorial Guinea, Serbia and Montenegro, the Russian Federation and Sri Lanka. The Committee also declared inadmissible 15 complaints against France, Australia, Bulgaria, the Czech Republic and Slovakia, Armenia, Spain, Chile, Colombia, New Zealand, Belgium and Finland, from individuals alleging that their rights under the treaty had been violated, and it discontinued consideration of three cases against Zambia, Sweden and Spain.
Meanwhile, the Committee against Torture (CAT), also meeting in November in Geneva, adopted 14 decisions on individual complaints submitted under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee found violations of the Convention in 3 cases against Serbia and Montenegro, and Canada, but no violation in relation to complaints against Switzerland, Sweden, Norway and Canada. The panel declared three cases – in relation to Switzerland, Azerbaijan and Sweden – as inadmissible.
The Covenant and CAT allow individuals to lodge complaints that their rights under the treaties have been violated. The country accused of the violation must be a State party to the treaty in question and have accepted the competence of the respective Committee to consider such complaints. The individual must also exhaust all possible remedies available in the State party.
Cases considered to be of particular interest are summarized below. The full text of all the decisions -- in English, French, Spanish and Russian -- can be found on the website of the Office of the High Commissioner for Human Rights (www.ohchr.org). On the homepage, to “Human Rights Bodies”, click on “Search the Treaty Body Database”, choose the relevant Committee – CCPR, for Human Rights Committee, or CAT – and look under “Jurisprudence”, where the decisions are listed in chronological order.
Decisions of Human Rights Committee
Antonino Vargas Mas (Communication 1058/2002), Jorge Luis Quispe Roque (Communication 1125/2002) and Marlem Carranza Alegre (Communication 1126/2002) : The Committee adopted Views on three cases against Peru concerning persons who had been sentenced to long-term imprisonment under anti-terrorism Decrees, which were declared unconstitutional in 2003. Antonino Vargas Mas, Jorge Luis Quispe Roque and Marlem Carranza Alegre, all currently imprisoned, were arrested in Lima between June 1992 and February 1993 and accused of collaborating with the Shining Path organisation. They claimed that the conditions of their arrest and detention and the manner in which their trial was conducted amounted to violations of the Covenant.
In the cases of Antonino Vargas Mas and Marlem Carranza Alegre, the Committee found violations of article 7, regarding their allegations of torture upon detention, and article 10, regarding their conditions of imprisonment. In all three cases the Committee found violations of article 9, concerning the manner in which the arrests were made, and article 14, because of the breach of fair trial principles.
The Committee requested Peru to provide the authors with an effective remedy and appropriate compensation. It also asked Peru to consider terminating their deprivation of liberty, pending the outcome of the new proceedings against them currently pending for the same facts.
Karen Noelia Llantoy Huamán v. Peru (Communication 1153/2003): The case concerns a Peruvian youth carrying an encephalic foetus when 17 years old. Despite the Peruvian Criminal Code’s exception for pregnancy termination on health reasons, State medical authorities denied her the authorization for a therapeutic abortion, and she was compelled to carry through her pregnancy. She gave birth to an encephalic baby girl, who survived for only four days. Following the infant’s death, the author fell into a state of deep depression.
The State party did not supply any information concerning the admissibility or the merits, to challenge the author’s allegations. In the Committee’s view, the State party’s unwillingness to let the author benefit from a therapeutic abortion was the cause of the suffering she experienced, and amounted to a violation of article 7 of the Covenant. In the light of this finding the Committee did not consider it necessary to make a finding on article 6 of the Covenant (right to life). The Committee also held that the refusal to act in accordance with the author’s decision to terminate her pregnancy was not justified and amounted to a violation of article 17 of the Covenant. In addition, the fact that the author, who was 17 years old, did not receive, during and after her pregnancy, such medical and psychological support as was necessary in the specific circumstances of her case, amounted to a violation of article 24 of the Covenant. Finally, the Committee considered that the lack of an adequate legal remedy in the author’s case, revealed a violation of article 2 in conjunction with articles 7, 17 and 24.
Faure v Australia (Communication 1036/2001): In this case, the author was required to perform certain activities in exchange for receipt of unemployment benefits (a so-called "Work for Dole" scheme). The regime could not be challenged in court by persons if it was uncontested that they fell within the ambit of the social security legislation in question and had to perform such labour. The author contended that these circumstances violated article 8 of the Covenant, which prohibits forced labour, and article 2 of the Covenant, which provides the right to an effective remedy. The Committee rejected the claim under article 8, noting that labour prohibited by that article involved substantial severity, hardship and/or coercion and also that the Covenant exempted from such proscribed labour work which amounted to normal civic obligations.
In Ndong Bee et al. & Mico Abogo v Equatorial Guinea (Communications 1152 and 1190/2003), the Committee considered two cases concerning six victims held incommunicado (without access to family or lawyers) at Black Beach prison in Malabo. The authors were sentenced during a trial of 144 opponents of the regime, which was held in Malabo in May 2002. The Committee found violations of articles 7, 9, 14, paragraphs 3 (a), (b), (d) and (g), and 2, paragraph 3 (a) and (b), of the Covenant, regarding the authors’ allegations of torture, arbitrary detention and procedural irregularities, and required the State party to immediately release and compensate the victims and any other detainees in the authors’ situation. The Committee accepted that the author of the first communication act on behalf of four other inmates on the basis of the situation in which they were being held.
In its Views on Siragev v Uzbekistan (Communication 907/2000), the Committee found that Danis Siragev, a former pop star sentenced to death in 1999 for murder and robbery, had been subjected to torture during the preliminary investigation. The Committee further found that the author’s lawyer had been prevented to meet him privately, and that he had been denied access to the first instance court records while preparing his cassation appeal. The Committee concluded that Mr. Siragev’s rights under articles 6, 7 and 14, paragraph 3 (b), of the Covenant were violated, as he was subjected to torture and sentenced to death after an unfair trial. The Committee considered that as the death sentence was subsequently commuted, the violation of article 6 of the Covenant had been rectified.
The case of Immaculate Joseph et al. v Sri Lanka (Communication 1249/2004) was brought by 80 teaching sisters of a Catholic order of nuns, the Third Order of St Francis in teaching Sisters of the Holy Cross in Meinzingen of Sri Lanka. The Order had sought statutory incorporation to better purpose various religious and charitable objects. Incorporation required a law of Parliament to such effect. Numerous other analogous religious bodies associated with other religions had previously successfully pursued such statutory incorporation. In the instant case, the Bill of incorporation was challenged, and duly held by the Supreme Court, to be unconstitutional, in breach of provisions of the Sri Lankan Constitution protecting religious freedom and determining Buddhism to be the State religion. The Supreme Court's determination, made without advice of the proceedings to the teaching sisters or the Parliamentary sponsor of the Bill, had as a result that the Bill required a supermajority in Parliament and acceptance by referendum for passage.
The Committee held that the Supreme Court's determination violated article 18 of the Covenant (protection of religious freedom), as the Court had not shown how any of the permissible restrictions on religious freedom had applied in the case. The determination also violated the prohibition of discrimination on religious basis set out in article 26, as other similarly situated religious bodies had been incorporated without difficulty. Finally, the procedure of the Supreme Court, compared to other analogous cases, also breached the guarantee of equality before the law also protected in article 26.
Follow-up to Individual Communications
Within the context of the follow-up procedure to individual communications, the Special Rapporteur on Follow-up presented a progress report on all information received on a number of communications between the 84th and the 85th session. The Committee made follow-up recommendations including in the following cases:
In Judge v. Canada (Communication 829/1998), the Committee had found a violation of the right to life article (article 6, paragraph 1), as the State party, which had abolished the death penalty, had deported the author to the United States where he was under sentence of death. On 8 August 2004, the State party informed the Committee that a stay of execution was issued by the U.S. District Court of Eastern Pennsylvania in October 2002, and that no date was set for his execution. At its 85th session the Committee decided that the State party should be requested to provide a further update on this case.
In Jiménez Vaca v Colombia (Communication 859/1999), the Committee found violations of the right to life (article 6, paragraph 1), right to security of the person (article 9, paragraph 1), and right to leave one’s own country (article 12, paragraph 1 and 4), as an attempt had been made on the author’s life and, as there were no effective domestic remedies allowing the author to return from involuntary exile in safety. On 26 September 2005, the author informed the Committee that his appeal to the Constitutional Court was rejected on 12 April 2005. According to the Court, there was no evidence that the author was currently at risk of being a victim of violations of his rights to life and physical integrity, should he return to Colombia. Equally, there was no evidence that the author had been prevented from using appropriate domestic remedies in order to pursue those responsible for the facts alleged and obtain reparation. At the same time, the Court requested the Ministry for Foreign Affairs to inform the author about the mechanisms available in order to protect his life, should he receive threats in the future, and to take the necessary measures to facilitate his return to the country. At the 85th session, the Committee decided that the State party should be requested to provide an update on measures taken to implement the ruling of the Constitutional Court.
Decisions of Committee against Torture
During its thirty-fifth session, the Committee against Torture examined the case of Mostafa Dadar against Canada (258/2004). Mr Dadar, an Iranian citizen who had been in prison in Iran because of his involvement with the opposition movement, had arrived in Canada in 1988 and obtained permanent residence. In 1996, he was convicted of aggravated assault and sentenced to 8 years’ imprisonment. After serving his sentence, he was detained under the Immigration Act and the Canadian authorities decided to deport him because he was considered a threat to public safety. Mr. Dadar claimed that his expulsion would constitute a breach of article 3 of the Convention against Torture, according to which no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. The Committee examined the arguments submitted by the parties regarding the risk of torture that Mr. Dadar could face in Iran and concluded that such risk indeed existed. It therefore found that his deportation would amount to a breach or article 3 of the Convention by Canada. The Committee did not share the Canadian authorities’ opinion that the fact that Mr. Dadar presented a danger to Canadian citizens should prevail over the risk of torture, and recalled that the prohibition enshrined in article 3 was an absolute one.
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For use of the information media; not an official record
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